Debating the Constitution: Technology and Privacy

These days, there is little that occurs without leaving some type of electronic trail. Cameras appear in buildings and on street corners, catching every move of passersby, and emails, text messages and other forms of electronic communication carry critical messages, and in some cases, details about wrongdoings, threats and crimes.

Most Americans enjoy a sense of safety and privacy when communicating via their home computers and personal cellphones, but what happens when the information contained in such communications has the capacity to cause harm to the general public? Should tech companies have to help law enforcement execute search warrants to access customer data as a matter of public safety and national security, or would doing so infringe upon the very freedoms upon which this nation is based?

Yes, tech companies should be required to help law enforcement execute search warrants to access customer data.

Arguing in favor of the motion are Stewart Baker, an attorney and former assistant secretary for policy with the U.S. Department of Homeland Security, and John Yoo, a law professor at the University of California, Berkeley, and a former attorney with the U.S. Department of Justice.

Arguments Made in Favor of the Motion

Those in favor of the motion argued that the 4th Amendment technically already authorizes law enforcement access to private data by allowing judges to grant search warrants to authorities when warranted. They noted that encrypting such data would essentially undermine the provisions of the Constitution and equated encrypted data to a “safe that can’t be cracked,” noting that it could hinder the nation’s ability to identify and prosecute criminals, exonerate those falsely accused and protect itself from potential attacks. Supporters also noted that accessing devices could allow law enforcement to gain information that would not be available through any other method and referenced the All Writs Act, which gives courts the ability to “issue orders to compel people to do things within the limits of the law.”

No, tech companies should not be required to help law enforcement execute search warrants to access customer data.

Arguing against the motion are Michael Chertoff, the executive chairman of the Chertoff Group, and the former secretary of the U.S. Department of Homeland Security, and CatherineCrump, the acting director of the Samuelson Law, Technology and Public Policy Clinic and a professor at the University of California, Berkeley, School of Law.

Arguments Made Against the Motion

Those against the motion argued that supporters’ interpretation of the All Writs Act was a violation of the 4th Amendment, noting that allowing law enforcement to access customer data would set a dangerous precedent that could have critical repercussions when it comes to consumer privacy. Opponents also argued that creating loopholes and compromising encryption to allow law enforcement to access encrypted data would also make it more vulnerable to hackers and more significant security threats and therefore prove counterproductive. Furthermore, they noted, law enforcement accessing customer data on cellphones and similar devices would violate Americans’ free expression and 1st Amendment rights.

Pre-Debate Poll Results

Prior to the debate, 26 percent of audience members were in favor of the motion, while 47 percent were against it and 27 percent were undecided.

Post-Debate Poll Results

After the debate, 36 percent of audience members were in favor of the motion, while 58 percent were against it and 6 percent were undecided.